Missouri Pac. Ry. Co. v. Robertson

• Decision Date: 30 November 1925
• Docket Number: (No. 17.)
• Citation: 169 Ark. 957,278 S.W. 357
• Parties: MISSOURI PAC. RY. CO. v. ROBERTSON.
• Court: Arkansas Supreme Court

278 S.W. 357

169 Ark. 957

MISSOURI PAC. RY. CO. v. ROBERTSON.

(No. 17.)

Supreme Court of Arkansas.

November 30, 1925.

Rehearing Denied January 18, 1926.

Appeal from Circuit Court, Greene County; W. W. Bandy, Judge.

Action by W. A. Robertson against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. B. Pryor, of Ft. Smith, and Gordon Frierson, of Jonesboro, for appellant.

Huddleston & Little and R. P. Taylor, all of Paragould, for appellee.

WOOD, J.

This is an action by the appellee against the appellant to recover damages for personal injuries growing out of the alleged negligence of the servants of appellant in the operation of its train. The appellee alleged that, while he was driving a truck over the track of appellant on a public crossing, appellee and his truck were struck through the negligence of the servants of appellant, operating its train, in failing to give the statutory signals, and in failing to keep a lookout, and in running said train at an excessive rate of speed.

The appellant, in its answer, denied the material allegations of the complaint, and set up the affirmative defense of contributory negligence on the part of the appellee. The verdict and judgment were in favor of the appellee, and the appellant duly prosecutes this appeal. We will dispose of the appellant's contentions in the order presented in brief of its counsel.

1. Appellant contends that the court erred in refusing its prayer for instruction No. 1 as follows: "You are instructed to return a verdict for the defendant." Learned counsel for appellant argue, first, that the undisputed testimony shows that the appellant's servants, in operating its train, were not negligent; and, second, if counsel be mistaken in this, that the undisputed testimony shows that the appellee was guilty of contributory negligence, and that his contributory negligence was much greater than any negligence of appellant's servants, and that in either event the appellant is not liable. There was testimony on behalf of the appellee, tending to prove that, while the appellee was traveling on the highway approaching the crossing, and about the time appellee reached the point where he would turn south on the highway, and where he could see as far as 400 feet to the north, the direction from which the train was coming that injured him, he looked both to the north and the south, and did not see or hear the train. From the time he made the turn he was traveling south toward the crossing, with his back in the direction from which the train was coming that struck him at the crossing. The train that struck the appellee was due at the station at 8:30, but it was shown by one of the witnesses for the appellee that the train was an hour late. Appellee's testimony tended to show that about the time he usually arrived at Lafe in the morning a train from the south — from Paragould — also arrived, and the appellee was expecting that train and giving more attention to that direction. It was a cold, cloudy day and appellee had the curtains up on his truck. Witnesses testified to the effect that they did not hear the bell ring or the whistle sound. Under the above testimony, the issue of negligence, contributory and comparative negligence, were for the jury.

2. The appellant next contends that the court erred in submitting to the jury the question as to whether or not the appellant's fireman failed to keep a lookout. The fireman testified that he was keeping a lookout. and that he saw the appellee as soon as he came out from behind the obstructions. It would unduly extend this opinion, and could serve no useful purpose, to set out and discuss in detail the testimony of the fireman to determine whether or not the court erred in submitting the question of a failure to keep a lookout to the jury. We have examined the testimony, and have concluded that the court did not err in submitting this issue. In other words, it was for the jury to say whether or not the testimony of the fireman, to the effect that he kept a lookout, was reasonable, self-consistent, and uncontradicted. The court's instructions on this issue were correct.

3. Counsel for appellant next contend that the court erred in refusing to give its prayer for instruction No. 5 as follows:

"You are instructed that, if you find from the evidence that the defendant's employees failed to whistle for the crossing, but did whistle for the station, and that such station whistle was a long blast and nearer the station than would have been the crossing whistle, failure to give the crossing whistle under such circumstances would not be the proximate cause of the accident."

The appellant concedes that there was testimony sufficient to warrant the court in submitting to the jury the issue as to whether or not the statutory signals were given as required by section 8568a of C. & M. Digest. That statute requires the bell to be rung or whistle to be sounded at a distance of 80 rods from the railroad crossing,...